Burrow v. The Terre Haute And Logansport Railroad Co.

• Decision Date: 14 September 1886
• Docket Number: 12,416
• Citation: 8 N.E. 167,107 Ind. 432
• Parties: Burrow v. The Terre Haute and Logansport Railroad Company
• Court: Indiana Supreme Court

8 N.E. 167

107 Ind. 432

Burrow v. The Terre Haute and Logansport Railroad Company

No. 12,416

Supreme Court of Indiana

September 14, 1886

Petition of a Rehearing Overruled Nov. 17, 1886.

From the Marshall Circuit Court.

Judgment affirmed.

G. E Ross, for appellant.

J. G Williams, for appellee.

OPINION

Elliott, J.

There are three paragraphs of the appellant's complaint, and although they differ in the relief sought, the gravamen of each of the causes of action is the same.

The essential facts in each of the paragraphs are that the appellant is the owner in fee of the real estate described, that the appellee unlawfully asserts a right to the possession of the property, and has wrongfully invaded the appellant's rights. The affirmative paragraph of the appellee's answer alleges that it is an incorporated railway company; that in the construction of its road, it became necessary to take possession of part of appellant's land; that before entering upon the land, except for the purposes of a survey, it did purchase a strip of land from William J. Myers, the grantor of the appellant; that Myers executed to it a written contract; that appellant had notice of this contract before his purchase, and that for the consideration expressed in the contract, "Myers did relinquish and release all claims for damages by reason of the location and construction of the railway."

It is said by counsel that "the contract or release declared on is not alleged to be in writing," and, therefore, must be presumed to be a verbal one. The counsel is right as to the abstract proposition of law, that a contract not alleged to be in writing will be presumed to be a verbal one. Langford v. Freeman, 60 Ind. 46; Goodrich v. Johnson, 66 Ind. 258. But while the counsel is right as to the law, he is wrong as to the fact, for the answer says: "A copy of said written contract of release is herewith filed and made part of this answer as Exhibit A." Where a contract is so described, it can not, of course, be presumed to be a parol one.

Following the answer is a copy of the contract referred to by the pleader, and it must be deemed a part of the pleading. Northwestern Mutual Life Ins. Co. v. Hazelett, 105 Ind. 212, 4 N.E. 582.

The entry for the purpose of making a survey was not an actionable wrong. Cooley Const. Lim. (5th ed.) 594.

The written contract reads thus:

"I, William J. Myers, of the county of Marshall, in the State of Indiana, in consideration of the advantages which will accrue to me in particular, and the public generally, by the construction of a railroad between Logansport, Cass county, Indiana, and South Bend, St. Joseph county, Indiana, and for the purpose of inducing the construction of such railroad and avoiding condemnation proceedings, do hereby release and quitclaim to J. Leiter and A. D. Toner, of Kewanna, Indiana, in trust for such railroad company or companies as may cause such railroad to be constructed, the right of way, for railroad purposes only, for such railroad, described as follows, to wit: A strip of ground ninety-nine feet wide, being forty-nine and one-half feet from the center on each side of the main track of said railroad as the same may be finally located and constructed, through the following real estate, in Marshall county, State of Indiana, to wit: The southwest sixty-one (61) rods in width of the north two-thirds (2/3) of lot number one (1); or the northwest fractional quarter of section twenty-one (21), township thirty-two (32) north, of range one (1) east, bounded on the west by the Winamac State road as now located, and on the east by Maxinkuckee lake--containing seventeen acres more or less. And I do hereby empower and direct the said J. Leiter and A. D. Toner to convey by good and sufficient deed the said right of way to the company or companies constructing said railroad, and do release and relinquish all claims for damages by reason of the location and construction of said railroad through or upon the above described real estate.

"Witness my hand and seal this 6th day of September, A. D. 1882.

"(Signed) William J. Myers.

"Executed in presence of A. B. Fitch."

It is contended by counsel that this instrument is a mere power of attorney, investing the persons named with authority to convey a right of way. We can not so regard it. It vests in the persons named an immediate right to the real estate described, and does more than constitute them agents to convey the land. In truth, the land is directly and explicitly conveyed to them as trustees, and they are authorized to execute their trust by proper conveyances.

The instrument is a contract, founded upon a valuable consideration, and not a mere naked license. It is, however, settled law that a license founded on a valuable consideration is not revocable, and there is here a valuable consideration, accepted as sufficient by the agreement of the parties. If, therefore, we were to hold that the instrument is only a license, the appellant could not revoke it. Strosser v. City of Fort Wayne, 100 Ind. 443, see p. 447; Rogers v. Cox, 96 Ind. 157, see p. 158 (49 Am. R. 152); Buchanan v. Logansport, etc., R. W. Co., 71 Ind. 265; Miller v. State, 39 Ind. 267; Snowden v. Wilas, 19 Ind. 10.

The objection that the description of the land is insufficient can not be maintained. It is not the office of a description to identify the land conveyed, but to furnish means of identification, and that is done by the description in the instrument before us. The decision in Indianapolis, etc., R. W. Co. v. Rayl, 69 Ind. 424, is directly in point against the appellant, and it finds support from other cases. Paul v. Connersville, etc., R. R. Co., 51 Ind. 527; Baltimore, etc., R. R. Co. v. Highland, 48 Ind. 381; Chidester v. Springfield, etc., R. W. Co., 59 Ill. 87.

Contracts such as the one before us are made to carry into effect a purpose known to the contracting parties and authorized by a public law, and they must have a reasonable construction. It can not be known in advance where the railway will be located, and it is consequently held that, within fair and reasonable restrictions, such contracts as the present must be understood as vesting in the railway company a right to select a location.

In the additional brief filed by counsel for the appellant, it is said: "There is nothing in the answer to show that appellant's title came through Wm. J. Myers." But here again, is a...